Sweeney v. Meyer

THE COURT. This is a consolidated action for the foreclosure of certain liens of mechanics and materialmen.

Judgment passed for the plaintiffs, and the owners, Johanna and Antone Meyer, appeal from that judgment and from the order denying a new trial.

1. The contract specified the times during the progress of the work when the partial payments were to he made. The court found that the third and fourth of these payments were made prematurely and in advance of the terms of the contract, and prior to the time when due, and were, therefore, invalid as payments for the purpose of diminishing or discharging the liens or any of the liens involved in the action.

By the mechanics’ lien law "no payment made prior to the time when the same is due, under the terms and conditions of the contract, shall be valid for the purpose of defeating, diminishing or discharging any lien in favor of any person except the contractor, but as to such liens such payment shall be deemed as if not made, and shall be applicable to such liens.” (Code of Civil Procedure, sec. 1184.) By the same section it is also provided that a written notice may be served upon the owner by one who has performed labor or furnished material, and that upon service of such notice "it shall be the duty of the owner to and he shall withhold from his contractor, or from any other person acting under such owmer .... all money due or that may become due to such contractor .... or sufficient of such [514]money to answer suclr claim; .... and all money paid thereafter by the owner to the contractor, while such notice is in force, shall, for the purposes of all liens of all persons except that of the contractor, be deemed a payment prior to the time the same was due within the meaning of and subject to the provisions of this section.”

Under this law appellants contend that an owner becomes liable for payments prematurely made to his contractor only in the event that thereafter, and before the time when such payments are due, he is served with the requisite notice. To this it must be answered that, while such might well have been the - law, the law is not so written. The provision as to notice is entirely separate and distinct from the provision invalidating payments prematurely made. The proceedings under the notice are in the nature of a garnishment, whereby there is impounded specific moneys due, or thereafter to become due, to the contractor. The provision of the law as to premature payments is not made dependent upon the giving or the failure to give notice. The provision is but a forthright declaration that, if a contractor shall make a payment prior to the time when it is due, that payment shall be deemed not to have been made, so far as affects all lien claimants other than the contractor himself. It is a provision like the provision requiring recordation. -It is an arbitrary demand of the statute, for the failure to comply with which the owner must suffer. If it be said that it is a harsh requirement, this may be conceded, but at the same time it should be noticed that the owner need not suffer from it if he complies with the law.